UNITED STATES of America, Plaintiff-Appellee, v. Jose MEDINA-CARRASCO, aka Josue Medina Carrasco, aka Jose Antonio Pereida Lopez, aka Jose Pereida-Lopez, Defendant-Appellant, 815 F.3d 457

Opinion by Judge GRABER; Dissent by Judge FRIEDMAN.

ORDER The opinion and dissent filed December 2, 2015, and published at 806 F.3d 1205, is amended by the opinion and dissent filed concurrently with this order, as follows: At opinion page -, 806 F.3d at 1212, replace footnote 4 of the dissent with the following: 4 Some critics have also suggested that appeal waivers cannot be truly voluntary when one contracting party — the government — has such a great advantage in bargaining power because the precise charge or charges to be brought and the resulting advisory Guideline sentencing range are totally up to the prosecutor.

It is illusory, they say, to suggest that the defendant has any real bargaining power in this context, any free and deliberate choice. Judges Graber and Watford have voted to deny Appellant’s petition for rehearing en banc, and Judge Friedman has declined to make a recommendation. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Appellant’s petition for rehearing en banc is DENIED. No further petitions for rehearing or petitions for rehearing en banc shall be entertained.

OPINION GRABER, Circuit Judge: Defendant Jose Medina-Carrasco pleaded guilty to illegal reentry after deportation. The district court sentenced him to 55 months’ imprisonment, to be followed by 3 years’ supervised release. On appeal, Defendant claims that the district court erred proeedurally by failing to state on the record the applicable sentencing guidelines range and erred substantively in calculating the applicable sentencing guidelines range.

But Defendant’s plea agreement contained a waiver of appellate rights specifically precluding a challenge to “any aspect of the defendant’s sentence — including the manner in which the sentence is determined and any sentencing guideline determinations.” We hold that Defendant was sentenced according to the plea agreement and that his waiver of appellate rights is valid and enforceable. Accordingly, we dismiss the appeal. FACTUAL AND PROCEDURAL HISTORY A federal grand jury indicted Defendant on one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(

a) as enhanced by § 1326(b)(1). He pleaded guilty pursuant to a written “fast-track” plea agreement. The agreement listed 18 different sentencing ranges, reached by combining three possible offense levels with six possible criminal history categories.

The agreement did not explain how the applicable offense level would be calculated, except to cite U.S.S.G. § 2L1.2 and state that “[t]he precise 'level of offense and number of months sentence imposed will be determined by the court based upon the defendant’s criminal record.” The guidelines ranges varied widely: The lowest range was 4 to 10 months’ imprisonment, and the highest range was 70 to 87 months’ imprisonment. The plea agreement also contained a

section titled ‘WAIVER OF DEFENSES AND APPEAL RIGHTS,” which provided: Provided the defendant receives a sentence in accordance with this fast-track plea agreement, the defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant’s sentence — including the manner in which the sentence is determined and any sentencing guideline determinations — and includes, but not limited to, any appeals under 18 U.S.C. § 3742 (sentencing appeals), any motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under 18 U.S.C. § 3582(c).

The defendant acknowledges that this waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. If the defendant files a notice of appeal or other challenge to his/her conviction or sentence, notwithstanding this agreement, the defendant agrees that this case shall, upon motion of the government, be remanded to the district court to determine whether the defendant is in breach of this agreement and, if so, to permit the government to withdraw from the plea agreement.

At the change of plea hearing, Defendant affirmed that he signed the plea agreement after having it explained to him by his lawyer, that he understood the terms and conditions of the plea agreement, and that he agreed to be bound by those terms and conditions. During the Rule 11 colloquy, Fed.R.Crim.P. 11, the magistrate judge addressed the wide range of sentences listed in the agreement: THE COURT: And Mr. Carrasco, you and the Government, with the help of Mr.

Flores, have entered into an agreement which, depending upon your criminal history and level of offense, states that you are agreeing that the district court judge may impose a prison sentence of between four months in prison up to 87 months in prison. Do you understand that? THE DEFENDANT: Yes, Judge. THE COURT: And Mr. Carrasco, there’s a broad range of sentencing possibilities under the plea agreement, and should the district court judge accept the plea agreement, the reason there’s such a broad range, it’ll be up to the district court judge to determine which offense level is appropriate for you.

And there are three potential offense levels, offense level 24, offense level 20, offense level 12. Then, once the district court judge determines the appropriate offense level, then the district court judge will determine your criminal history [category] based upon your criminal history, and there’s different criminal history categories under each offense level that can go from criminal history category one up to criminal history category six. Do you understand that’s why there’s a very broad range of sentencing possibilities under the plea agreement? THE DEFENDANT: Yes, Judge.

Defendant also affirmed that he understood that he was giving up his right to appeal or collaterally attack his conviction and his sentence. The Presentence Investigation Report (“PSR”) applied the modified categorical approach to conclude that Defendant’s pri- or conviction for aggravated assault was for a “crime of violence,” triggering a 16-level increase under U.S.S.G. § 2L1 -2(b)(1)(A)(ii). The PSR applied that increase to the base offense level of 8 and subtracted 3 levels for acceptance of responsibility, for a total offense level of 21.

After reviewing Defendant’s criminal history, the PSR concluded that the appropriate criminal history category was IV. The resulting range was 57 to 71 months in prison. In his sentencing memorandum, Defendant requested a downward departure or variance, arguing that “the 16-level enhancement substantially overstates the seriousness of the conviction, and consequently subjects Mr.

Medina to an unduly harsh sentence.” At the sentencing hearing, Defendant’s lawyer affirmed that, other than the request for the departure or variance, he had no “objections to the probation officer’s guideline recommendations and factual representations in the report.” Later, defense counsel specifically conceded, referring to Defendant’s aggravated assault conviction, that “it’s a crime of violence, ... it’s a level 24.” The district court sentenced Defendant to a below-guidelines 55 months of imprisonment, to be followed by 3 years of supervised release. Defendant timely filed a notice of appeal.

Because Defendant knowingly and voluntarily waived his right to challenge “any aspect of [his] sentence — including ... any sentencing guideline determinations,” we dismiss the appeal. STANDARD OF REVIEW We review de novo the validity of an appeal waiver. United States v. Charles, 581 F.3d 927, 931 (9th Cir.2009). A waiver of appellate rights “is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.2005), overruled on other grounds by United States v.

Castillo, 496 F.3d 947, 957 (9th Cir.2007) (en banc). To discern whether a waiver is knowing and voluntary, we must ask “what the defendant reasonably understood to be the terms of the agreement when he pleaded guilty.” United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (footnote omitted). DISCUSSION Defendant argues that the waiver is unenforceable for two related, but distinct, reasons. First, he argues that the requirement that he be sentenced “in accordance with” the plea agreement is ambiguous, such that his waiver was not knowing and voluntary.

Second, he contends that he was not sentenced “in accordance with” the plea agreement because his aggravated assault conviction was not a conviction for a crime of violence. The requirement that Defendant be sentenced “in accordance with” the plea agreement is not ambiguous. The phrase “in accordance with” requires only that the ultimate sentence fall within the broad range authorized by the plea agreement. Defendant agrees that such an

interpretation is plausible, but he argues that the phrase also could be read to require that any sentence imposed rest on a correct guidelines calculation. We cannot accept Defendant’s alternate

interpretation for two reasons.. First, Defendant’s reading would render meaningless the express waiver of the right to challenge “any sentencing guideline determinations,” contrary to basic principles of contract

interpretation. See United States v. Cope, 527 F.3d 944, 949-50 (9th Cir.2008) (“For the most part, we interpret plea agreements using the ordinary rules of contract

interpretation.” (internal quotation marks omitted)); United States v. Schuman, 127 F.3d 815, 817 (9th Cir.1997) (per curiam) (rejecting the defendant’s proposed reading of the plea agreement because “it would render the waiver meaningless”). Second, to allow an allegedly incorrect guidelines calculation to render inapplicable a waiver of the right to appeal sentencing guidelines determinations “would nullify the waiver based on the very sort of claim it was intended to waive.” United States v. Smith, 500 F.3d 1206, 1213 (10th Cir.2007). Moreover, even if the phrase “in accordance with” the plea agreement were susceptible to more than one

interpretation, the plea colloquy here eliminated any ambiguity. Defendant affirmed that he understood that there was a “broad range” of sentences available under the agreement and that the district judge could impose a sentence of between 4 and 87 months’ imprisonment, depending on the applicable offense level and criminal history category, among other factors.

And, as we have explained, the written plea agreement specifically waives the right to challenge “any sentencing guideline determinations.” Together, the written agreement and the Rule 11 colloquy were sufficient to ensure (1) that Defendant knew that the judge would be deciding where Defendant fell within the agreed-upon sentencing grid, and (2) that Defendant understood he was giving up the right to challenge that determination.

Defendant’s second contention— that he was not sentenced “in accordance with” the plea agreement because the district court’s “crime of violence” determination was incorrect — is similarly unavailing. We need not reach the merits of the “crime of violence” question because, regardless of the correct answer to that question, Defendant was sentenced “in accordance with” the plea agreement. As we have explained, because Defendant expressly waived his right to challenge sentencing guidelines determinations, a sentence “in accordance with” the plea agreement need not rest on a correct guidelines determination.

Here, the district court applied the guidelines range recommend by the PSR, to which Defendant did not object. Further, Defendant’s lawyer conceded that Defendant’s conviction was for a “crime of violence” and that the 16-level enhancement applied. And the below-guidelines sentence ultimately imposed fell within the range set out in the sentencing grid. Defendant’s sentence thus was “in accordance with” the plea agreement. Defendant agreed to waive his right to appeal, along with a number of other rights, in exchange for a lower sentence.

He received the benefit of that bargain; after subtracting three offense levels for acceptance of responsibility, the district court imposed a below-guidelines sentence. That he “did not realize the strength of his potential appellate claims at the time that he entered into the plea agreement” does not permit- him to invalidate his knowing and voluntary waiver of appellate rights. United States v. Nguyen, 235 F.3d 1179, 1184 (9th Cir.2000), abrogated on other grounds by United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir.2011).

We will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious, because “[t]he whole point of a waiver ... is the relinquishment of claims regardless of their merit.” Id. DISMISSED. . Defendant asserts that the sentencing grid included in the plea agreement looks like "some esoteric algebraic algorithm.” To the extent that he is arguing that the grid is so confusing that it undermined his knowing consent to the plea agreement, we cannot accept that argument.

We do not dispute that the typical person unfamiliar with the intricacies of the federal sentencing guidelines would be confused by the grid at first. But, as we have explained, Defendant affirmed that his lawyer had explained the plea agreement and that Defendant understood its terms and conditions. Moreover, the magistrate judge explained in general how the grid worked, and again Defendant said that he understood. Having made those representations, Defendant cannot now claim that his waiver was not knowing and voluntary because he did not understand the grid. Cf. United States v.

Harvey, 484 F.3d 453, 458 (7th Cir.2007) (“He cannot now claim that he did not understand the charge. If he had genuinely been confused, he should have said something to the judge during the Rule 11 colloquy, at a time when the government easily could have corrected the.problem.”). We do not mean to suggest that there are no problems with the grid used in the plea agreement in this case; we merely hold that it was not so inherently confusing that Defendant's consent could not have been knowing and voluntary.

In drafting plea agreements, we encourage the government to continue to “seek terms that will convey to each of the parties, and the court, a clear understanding of the rights and obligations created.” United States v. Enriquez, 42 F.3d 769, 772 (2d Cir.1994).